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2021 DIGILAW 473 (HP)

Jaswant Singh v. State of Himachal Pradesh

2021-07-28

JYOTSNA REWAL DUA, RAVI V.MALIMATH

body2021
JUDGMENT : Ravi V. Malimath, J. 1. The brief facts of the prosecution case, are as follows:- 2. That on 10.12.2014, PW-7 HC Raj Pal, alongwith Head Constable Vinay Kumar, PW-3 LHC Manoj Negi and constable Anu were patrolling in the official vehicle of the Police Department, bearing No. HP-34A-9987, which was being driven by HHG Jagdish Chand. It was with reference to a theft case of Raghunath Temple. They were present at a place called 'Rahtar' on Shiah Bihali Road, on a path towards Nagwain. At about 6.30 p.m., the accused was coming from Bhuntar side. He was carrying a bag in his right hand. It had two strings of green colour. While he was coming, he was stopped by the Investigating Officer (PW-7). He disclosed his name as Jaswant Singh, son of Shri Revati Ram, resident of Village Najan, District Kullu, (H.P.). It is a further case of the prosecution that the accused got scared and frightened. It was dark. The accused was searched in the presence of HC Vinay Kumar and LHC Manoj Negi (PW-3), in terms of the seizure memo. Ext. PW 3/B. On checking and opening the zip of the bag Ext. P-2, one bag of pink colour, vide Ext. P-3, was found inside. On further checking of the said bag, one polythene bag was found. It contained a black colour substance in the shape of sticks and bowls, wrapped in transparent poly wrappers, in terms of Ext. P-4. On the basis of experience and smelling, the Investigating Officer found that the sealed substance was cannabis. It weighed about 1 Kg. 250 grams. The cannabis was seized. The bag was sealed in a cloth cover. The samples were taken, out of which, one was Ext. PW 3/A. Seals were put on the same. Thereafter, a case was registered against the accused with the Police Station, Bhuntar, District Kullu, in FIR No. 197 of 2014, dated 10.12.2014, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. The accused was taken into custody. The investigation was taken up. Thereafter, a charge-sheet was filed against the accused for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. The accused pleaded not guilty and claimed to be tried. 3. In support of its case, the prosecution, in all, examined PW-1 to PW-7 and marked Exts. The investigation was taken up. Thereafter, a charge-sheet was filed against the accused for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. The accused pleaded not guilty and claimed to be tried. 3. In support of its case, the prosecution, in all, examined PW-1 to PW-7 and marked Exts. PW-1/A to PW-7/E. Neither any witness was examined on behalf of the defence nor any exhibits were marked. 4. By the impugned judgment, the accused was convicted for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. He was sentenced to undergo rigorous imprisonment for a period of ten years, alongwith fine of Rs. 1,00,000/-. In default of payment of fine, the accused-convict was ordered to further undergo rigorous imprisonment for a period of one year, Aggrieved by the same, the instant appeal is filed. 5. Mr. N.S. Chandel, the learned Senior Advocate, assisted by Mr. Vinod Kumar Gupta, Advocate, appearing for the appellant, contends that the trial Court has committed an error in convicting the accused. That there is no material even to frame charges against the accused. That the appreciation of evidence by the trial Court, leads much to be desired. The key witness in the case being PW-3, has turned hostile. The only other witness that can support the case of the prosecution so far as the seizure is concerned, is the Investigating Officer (PW-7). The entire case of the prosecution cannot rest solely on the evidence of the Investigating Officer. Under these circumstances, the trial Court has misread the evidence on record and has wrongly convicted the accused. He further pleads that there are various discrepancies with regard to the movement of the official vehicle of the police when the seizure took place, the doubt about the accused walking in the said area and various other factors. Hence, he pleads that the appeal may be allowed by setting aside the judgment of conviction and sentence passed by the trial Court and acquitting the accused. 6. The same is disputed by Ms. Ritta Goswami, learned Additional Advocate General, appearing for the prosecution. She submits that the trial Court has rightly convicted the accused. That a huge quantity of cannabis, weighing 1 Kg. 250 grams. was seized from the accused. This is not within the permissible limit. 6. The same is disputed by Ms. Ritta Goswami, learned Additional Advocate General, appearing for the prosecution. She submits that the trial Court has rightly convicted the accused. That a huge quantity of cannabis, weighing 1 Kg. 250 grams. was seized from the accused. This is not within the permissible limit. That the accused is a person, who is habitually involved in the commission of this offence. That he has been caught red-handed by the police. Only because there are certain minor discrepancies in the prosecution case, does not entail the Court to take a view that the prosecution has failed to prove its case. Substantial material having been led in. The trial Court has passed a well reasoned and justified order. Hence, no interference is called for. 7. Heard learned counsels and examined the records. 8. PW-1 is HHC Neel Chand. He has stated that he was posted on general duty at Police Station, Bhuntar, District Kullu. He has stated that on 11.12.2014, MHC Gian Chand gave him the case property of FIR No. 197 of 2014, to be taken to SFSL, Junga. His evidence is of no avail to the prosecution case. 9. PW-2 is HC Nirat Singh. He has stated that he was posted as Reader to Dy. S.P. (Hqrs), Kullu. On 11.12.2014, Shri Sanjay Kumar, Dy. S.P., handed over to him special report Ext. PW 2/A after making his endorsement. His evidence is also of no avail to the prosecution case. 10. PW-3 is LHC Manoj Negi. He has stated that he was present when the incident took place. That he alongwith HC Vinay Kumar and others were proceedings towards 'Rahtar' in connection with the patrolling after the theft had taken place in Raghunath Temple. At about 6.30 p.m., one person was coming from Bhuntar side. He further stated that they when stopped the said person, he became afraid. He disclosed his name as Jaswant Singh. He alongwith HC Vinay Kumar were associated as witnesses by the Investigating Officer. The search of the bag was done. On opening the bag, one pink colour bag was found inside and on checking the same, one transparent pack was found and in the said transparent pack, sticks with black colour substance was found. The Investigating Officer, on the basis of experience and smelling, found that to be Charas. It weighed 1 Kg. 250 grams. On opening the bag, one pink colour bag was found inside and on checking the same, one transparent pack was found and in the said transparent pack, sticks with black colour substance was found. The Investigating Officer, on the basis of experience and smelling, found that to be Charas. It weighed 1 Kg. 250 grams. Thereafter, it was parceled in a cloth bag and sent to the Police Station. In the cross-examination, he has stated that the personal search of the accused was not taken in his presence. However, he has once again denied it by saying that it is incorrect that he was not present at that time nor the accused was apprehended at that spot. 11. PW-4 LC Urmila is another official witness, who has entered the Rapat Nos. 36(A) & 48 (A) and also Rapat No. 4(A), dated 11.12.2014. 12. PW-5 is the statement of HC Gian Chand, who has stated about the deposit of one sealed parcel, containing various items. 13. PW-6 is a statement of SI/SHO Bhag Singh, who has registered the FIR in terms of Ext. PW 6/A. He has also received one sealed parcel with nine seals, said to contain 1 Kg. 250 grams of cannabis and various other material. 14. PW-7 is the Investigating Officer HC Raj Pal. He has narrated the evidence as stated by PW-3. He has also stated that in their presence, the bag was checked. One zip was on the bag, which was opened and on opening the said zip, one carry bag of pink colour was found inside. On checking the said bag, one polythene bag was found, which was containing black colour substance in the shape of sticks, wrapped in transparent poly wrappers. On the basis of experience and smelling, it was found to be cannabis. He has also narrated the manner in which the investigation was carried out thereafter. He has reiterated even in the cross-examination that both the police officials, namely, PW-3 and HC Vinay Kumar were associated as witnesses regarding the recovery of Charas. 15. On considering the contentions and evidence on record, we are of the considered view that appropriate interference is called for. 16. In order to prove the charges against the accused, primarily the prosecution would have to prove that the seizure of the contraband was in a manner in accordance with law. 15. On considering the contentions and evidence on record, we are of the considered view that appropriate interference is called for. 16. In order to prove the charges against the accused, primarily the prosecution would have to prove that the seizure of the contraband was in a manner in accordance with law. To this effect is the evidence of the Investigating Officer (PW-7) and that of LHC Manoj Negi (PW-3). Even though, another police official HC Vinay Kumar was present at the spot, but the prosecution has chosen not to examine him. He has been given up as a witness, even though, he was narrated as charge-sheet witness No. 1. The entire case of the prosecution rests on the seizure. The. Investigating Officer has stated in categorical terms that he, PW-3 LHC Manoj Negi and Vinay Kumar were present at the scene of offence. That when the accused came there, he became frightened. He was a suspect. He was carrying a bag. When the bag was opened, charas was found. Therefore, the statements of each one of the three witnesses should have been a part and parcel of the prosecution case. However, for the reasons best known to the prosecution, the evidence of HC Vinay Kumar, namely, charge-sheet witness No. 1, was given up. Therefore, we are left with the evidence of PW-3 LHC Manoj Negi and that of the Investigating Officer (PW-7). PW-3 has turned hostile. In his examination-in-chief, he has stated that he, alongwith HC Vinay Kumar, were associated as witnesses by the Investigating Officer. That the search of the bag was done. On opening of the bag, 1 Kg. 250 grams of charas was recovered. In the course of his cross-examination by the accused, he has stated that the "personal search of the accused was not taken in my presence". Thereafter, on being further cross-examined, he has stated that it is incorrect that "we were not present at the spot nor accused was apprehended at the spot". Therefore, PW-3 having turned hostile to the case of prosecution, his evidence cannot be relied upon. He has not supported the examination-in-chief. He has made a contrary statement in his cross-examination. Therefore, we are left only with the evidence of the Investigating Officer (PW-7). The Investigating Officer is the one who has conducted the investigation and was also present at the scene of offence. 17. He has not supported the examination-in-chief. He has made a contrary statement in his cross-examination. Therefore, we are left only with the evidence of the Investigating Officer (PW-7). The Investigating Officer is the one who has conducted the investigation and was also present at the scene of offence. 17. In a catena of judgments, as narrated by the Hon'ble Supreme Court, it would not be prudent to rely solely on the evidence of the sole witness in every case to bring home the guilt of the accused. It is also trite that if there is one trustworthy witness, it is sufficient to bring home the guilt of the accused. However, in the instant case, the evidence by the Investigating Officer, runs contrary to the evidence of PW-3. Therefore, we do not find it prudent to accept the evidence of the Investigating Officer for more reasons than one. 18. In the examination-in-chief as well as in the cross-examination, the Investigating Officer has very categorically stated that the search and seizure of the cannabis in question was done in the presence of HC Vinay Kumar as well as PW-3. HC Vinay Kumar has not been examined. PW-3 has turned hostile. Therefore, on this basis, it will be difficult to accept the evidence of PW-7 as a trustworthy witness. The statement made by PW-7 that PW-3 was present at the scene of offence, runs contrary to the evidence of PW-3 himself, who has stated that he was not present when the seizure took place. Therefore, we do not find it safe to accept the evidence of PW-7. The rest of the witnesses are official witnesses, which do not go to the aid of the prosecution case. The crucial witnesses are PW-3 and PW-7. The evidence of both these witnesses cannot be relied upon. Firstly, because PW-3 has turned hostile and secondly, that the evidence of PW-7 does not corroborate the evidence of PW-3. 19. The appellant has been charged for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. Therefore, the prosecution will have to prove that he was in possession of the contraband articles. Possession with the accused has to be proved beyond all reasonable doubt. It is only thereafter, the prosecution case can proceed further. In the absence of proving possession, no amount of other evidence is sufficient to bring home the guilt of the accused. Therefore, the prosecution will have to prove that he was in possession of the contraband articles. Possession with the accused has to be proved beyond all reasonable doubt. It is only thereafter, the prosecution case can proceed further. In the absence of proving possession, no amount of other evidence is sufficient to bring home the guilt of the accused. Until and unless, the prosecution proves the possession of the articles with the appellant, the other evidence collected by the prosecution, will not come to its aid. Since the prosecution has miserably failed to prove the possession of the articles by the appellant, the entire prosecution case fails. 20. For all these reasons, the appeal is allowed. The judgment of conviction and order of sentence, dated 5th July, 2017, passed by the Special Judge, Kullu, H.P., in Sessions Trial No. 21 of 2015, titled State of Himachal Pradesh v. Jaswant Singh, is set aside. The appellant is acquitted of the charge leveled against him under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. The concerned Jail authorities are directed to release the appellant, forthwith, if he is not required in any other case. The Registry is directed to communicate the operative portion of this judgment to the concerned Jail authorities, forthwith. 21. Pending miscellaneous applications are disposed off.